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Western Watersheds Project v. Matejko

Court of Appeals for the Ninth Circuit
468 F.3d 1099 (2006)
ELI5:

Rule of Law:

Under Section 7(a)(2) of the Endangered Species Act, an 'agency action' that triggers the duty to consult must be an affirmative act that authorizes, funds, or carries out a project. A federal agency's failure to regulate or exercise discretionary control over pre-existing, privately-held rights on public land does not constitute such an affirmative agency action.


Facts:

  • Private landowners hold vested rights-of-way, established under the federal Acts of 1866 and 1891, to divert water from rivers on public lands in central Idaho for irrigation purposes.
  • These rights-of-way, and the associated diversion structures (e.g., dams and pipes), predate the Federal Land Policy Management Act (FLPMA) of 1976.
  • The ongoing operation of these water diversions could potentially jeopardize threatened species of fish in the Upper Salmon River basin.
  • The Federal Land Policy Management Act (FLPMA) of 1976 explicitly preserved these pre-existing, valid rights-of-way.
  • The Bureau of Land Management (BLM) has a long-standing policy of not regulating these vested rights-of-way unless the private holder makes a 'substantial deviation' in the location or authorized use of the diversion.
  • The BLM has not affirmatively authorized, funded, or carried out the ongoing operation of these historical water diversions.

Procedural Posture:

  • Western Watersheds Project sued the Bureau of Land Management (BLM) in the U.S. District Court for the District of Idaho, alleging violations of the Endangered Species Act (ESA).
  • The State of Idaho intervened in the lawsuit as a defendant.
  • The parties agreed to litigate the legal issue based on a set of six 'test-case' water diversions.
  • On cross-motions for summary judgment, the district court ruled in favor of Western Watersheds.
  • The district court found the BLM's failure to regulate constituted an 'agency action' and issued a permanent injunction ordering the BLM to initiate consultation under the ESA.
  • The BLM (as defendant-appellant) and the State of Idaho (as defendant-intervenor-appellant) appealed the district court's injunction to the U.S. Court of Appeals for the Ninth Circuit.

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Issue:

Does the Bureau of Land Management's (BLM) failure to regulate pre-existing, private water diversions on public land constitute an 'agency action' under Section 7(a)(2) of the Endangered Species Act, thereby triggering a mandatory duty to consult?


Opinions:

Majority - Judge King

No. The Bureau of Land Management's failure to regulate the diversions is not an 'agency action' triggering the duty to consult under the Endangered Species Act because the statute applies only to affirmative agency conduct. The plain language of Section 7(a)(2) requires an action that is 'authorized, funded, or carried out' by an agency, and this affirmative wording stands in contrast to other parts of the ESA that explicitly cover an agency's 'failure to act.' Here, the BLM did not fund, permit, build, or otherwise carry out the diversions; they are the result of pre-existing private rights. The mere existence of unexercised discretionary authority to regulate is not itself an 'action.' Furthermore, there is no 'ongoing agency action' because the BLM, through its regulations, did not retain the kind of discretionary control that would allow it to influence the projects for the benefit of protected species, limiting its intervention to cases of 'substantial deviation.'



Analysis:

This decision significantly narrows the definition of 'agency action' under Section 7(a)(2) of the ESA, establishing a clear precedent that only affirmative agency conduct triggers the consultation requirement. It insulates federal agencies from ESA challenges based on their inaction or failure to regulate long-standing private activities on public lands that are based on vested rights. The ruling reinforces the durability of pre-FLPMA rights-of-way and directs environmental challenges concerning their impact away from compelling agency consultation and towards potential 'takings' claims under Section 9 of the ESA against the private rights-holders themselves.

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